Industrial Actions and the European Union - A study on how the European legal order has affected the right to undertake industrial actions for Swedish trade unions

Sammanfattning: This thesis has the aim of investigating how EU-law has affected the legal position regarding Swedish trade union’s possibilities of undertaking industrial actions. It also aims at determining whether the influence of EU-law on the right to undertake industrial actions has had any effects on the Swedish model. According to CJEU’s judgements in Laval and Viking it must be said that the possibility for trade unions to undertake industrial actions has been decreased in favour of economic rights. This has been done by the fact that the right to undertake industrial actions must be weighed against the freedom of movement, which is secured by the four fundamental freedoms. Restrictions to fundamental freedoms must be proportionate, pursue a legitimate objective compatible with the treaty and be justified by overriding reasons of public interest. This thesis has found that industrial actions have the purpose of protecting the workers and can therefore be seen as an action that in principle can restrict a fundamental freedom. Industrial actions must also be proportionate, which entails that industrial actions are to be considered as ultima ratio and only allowed if jobs and terms of employment are under serious threat or jeopardized. In relation to posted workers it is also only allowed to enforce minimum regulations within the “hard core”. This has, in a negative way, impacted the possibility of undertaking industrial actions in Sweden since such actions does not adhere to these principles within the Swedish legal order. From CJEU’s case-law it must also be questioned if different kinds of industrial actions are to be assessed differently depending on if they directly regulate the terms and conditions of employment of the affected workers or not. The principles above have affected the Swedish model, particularly in areas relating to wages and the trade union’s possibilities of monitoring and sanctioning a foreign employer. As an effect there has been legal changes that entered into force in 2017 and changes to collective agreements so that they contain explicit minimum wage levels. It is however questionable if these changes have solved the problems since the regulations is yet to be addressed by the courts or analysed in the doctrine.